Thursday, January 19, 2006

Gonzales v. Oregon cont.

OK, I finally got around to reading some of the opinions in the Gonzales v. Oregon case regarding Assisted Suicide. I must admit that I'm pretty flummoxed by all this. Scalia seems on the money that Congress seems to have given the AG the latitude to make decisions like the one he is trying to make, although I do not have access to the legal guidelines that drive his process to add and subtract the list of controlled substances and that control his ability to register and deregister. Not having that, and assuming Scalia is correct, it would seem he has the legal high ground, if we are talking about following the law as it stands.

Thomas is also correct that the court isn't being consistent due to it's recent arguments in Reich. I was disappointed with the legal rabbit trail that decision created.

However, I still can't help but think that the conservatives are missing something here. Scalia said:

It is entirely reasonable to think (as Congress evidently did) that it would be easier for the Attorney General occasionally to make judgments about the legitimacy of medical practices than it would be for the Secretary to get into the business of law enforcement. It is, in other words, perfectly consistent with an intelligent “design of the statute” to give the Nation’s chief law enforcement official, not its chief health official, broad discretion over the substantive standards that govern registration and deregistration. That is especially true where the contested “scientific and medical” judgment at issue has to do with the legitimacy of physi-cian-assisted suicide, which ultimately rests, not on “science” or “medicine,” but on a naked value judgment. It no more depends upon a “quintessentially medical judgmen[t],” ante, at 20, than does the legitimacy of polygamy or eugenic infanticide. And it requires no particular medical training to undertake the objective inquiry into how the continuing traditions of Western medicine have consistently treated this subject.

OK, since this is a value judgment, why does the Attorney General get the say so of what is covered and what is not, when a plurality of the general population of one state declared what they believe is the opposite.

This seems to be extending from the logical argument Thomas used, in that it is historically consistent for the Federal government to use the commerce clause to restrict activity that it feels is detrimental to the public interest.

I'm really not convinced that you can compare the transport of lottery tickets and women over state line to what we are talking about here. It was within the Feds power to restrict that activity because it was trulyinterstate activity. Treating women as objects for sale is something that we reached a national consensus on long ago. Lottery tickets are a strictly economic activity that is state by state regulated, and therefore the interstate transport of these renders it illegal in many states anyway.

I'm not convinced that something that applies to the individual uniquely is interstate activity.I'm also leery as Kennedy is about broad powers by a partisan-appointed office to decide for himself what is and isn't illegal. We are restricting and codifying morality here. I realize it has been done in the past, this isn't a unique situation. Not knowing what latitude the AG has when making these decisions is my concern.

However, I like I said, Scalia's dissent seems air-tight as far as the strict legality of what powers congress has given to the AG are. Was congress correct?

Here are the AG’s guidelines as listed in Kennedy’s argument:

When deciding whether a practitioner’s registration is in the public interest, the Attorney General “shall” consider:

“(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.

“(2) The applicant’s experience in dispensing, or conducting research with respect to controlled substances.

“(3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.

“(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.“

(5) Such other conduct which may threaten the public health and safety.” §823(f).

OK, number 4 is really telling the AG that he should be consulting the states for guidance, and since he is battling the state of Oregon he’s not following that one. But number 5 really supersedes all of the other ones. How broad a statement is that: Such other conduct. Doesn’t that give the AG pretty broad power to control whatever substance he wants?

One last note, a reader sends this in support of the majority:

Realistically, most people who want to kill themselves can do it without a doctor’s approval and State sanction. Such sanction might actually push the boundaries beyond making suicide acceptable, and eventually invoke pressure to end one’s life if it became inconvenient to others. That is a definite “public health and safety” concern. I do think the Federal government has the legitimate moral authority, as the representative body of our nation as a whole, to establish a value for life, and not allowing State sanctioned, or fostered, suicide is part of that.

Good point.

Oren Kerr at Volokh Conspiracy notes the decision, but only calls it "pretty interesting" and by the way he posted, I'm wondering if he isn't foreshadowing how the court will treat Bush's use of NSA surveillance.